1. WAHIDUDDIN AHMAD, J.--This appeal by special leave is directed against the order of the High Court of West Pakistan, Lahore, in Civil Revision No, 187 of 1963 dated the 18th April 1966. By this order the revision petition was dismissed.
2. The dispute between the parties is in respect of house No, 448, situated in Samanabad, Lahore. The appellant entered into an agreement of sale of the said house with the respondent on the 5th September 1958 and agreed to sell it for a sum of Rs, 22,250. A sum of Rs, 1,700 was paid in advance under the terms of the agreement. The appellant was to obtain No-Objection Certificate from the Income-tax authorities. She was also to obtain permission for transfer of the lease from Lahore Improvement Trust. It appears that the appellant was unable to obtain No-Objection Certificate from the Income-tax authorities. The Lahore Improvement Trust also refused to give permission for the transfer of the lease. in spite of this the appellant executed a sale deed on the 17th September 1958, in favour of the respondent. On the 11th December 1958, the respondent presented the sale deed for registration under section 36 of the Registration Act. As the appellant refused to get it registered, the Sub-Registrar refused to register the said deed. The respondent appealed against this order which was accepted by the Joint Sub-Registrar on the 23rd June 1959. The learned Officer directed that the sale deed be registered under section 75 (1) of the Registration Act. It appears that the appellant appeared before the Joint Sub-Registrar on the 23rd June 1959, and admitted the execution of the deed and expressed her willingness to sign the deed provided the respondent pays the Income-tax authorities a sum of Rs, 18,000 which was alleged to be due from her and obtain No-Objection Certificate from the Income-tax authorities. She also claimed that the balance should be paid to her after deducting the amount paid to the Income-tax authorities. In view of the order of the Joint Sub-Registrar, the sale deed was presented for registration on the 9th July 1959, and registered on the 30th July 1959.
3. The appellant challenged the validity of the sale deed in Suit No, 4/1, 260/1 in the Court of Mr. M. A.
4. Soofi, Special Civil Judge, Lahore and sought a declaration that the sale deed dated the 17th September 1958, registered on the 30th July 1959, is void and should be cancelled and delivered to her. In the plaint she alleged the the sale deed could not be registered as it was presented after 30 days of the order of the Joint Sub-Registrar. She further contended that as the permission of the Improvement Trust was not given the sale has become ineffective. She also alleged that the sale was without consideration. These contentions were repelled by the Special Civil Judge, Lahore, by order dated the 31st July 1961 and the above-mentioned suit was dismissed. The learned Special Civil Judge held that the appellant had received Rs, 2,130 from the respondent and the deed was valid. The appellant filed an appeal against this order in the Court of Additional District Judge, Lahore, which was dismissed on the 13th December 1960. The matter was then taken in Civil Revision No, 187 of 1963 which was dismissed by a learned Single Judge of the High Court of West Pakistan, Lahore, on the 18th April 1966.
5. In the revision before the High Court, the appellant also raised an objection that as no income-tax certificate has been obtained under section 3 of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947), no Registering Officer was competent to register the sale deed. This contention was also repelled by the High Court. The High Court observed that this point was not taken before the Courts below and it was not open to raise it at the stage of revision. It further held that this-circumstance combined with the provisions of section 4 of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947), lead to the conclusion that the objection of non-procurement of an income-tax certificate cannot prevail. This order is being challenged in this appeal before us.
6. Leave was granted to the appellant to examine the following conclusions of the High Court :- (1)That the non-production of No-Objection Certificate from the Income-tax Department did not vitiate the registration; (2)that the non-payment of the balance of the purchase does not vitiate the registration because the applicant-seller has not claimed that balance in the suit; and (3)that the seller does not stand to suffer on account of refusal of the Improvement Trust to permit the transfer of the lease.
7. Mr. lhsanul Haq, learned counsel for the appellant, has challenged The validity of the sale deed on three-fold grounds. In the first place, the learned counsel contended that the registration of sale deed in contravention of section 3 of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947), is illegal and invalid. Secondly, that non-payment of the balance of the purchase price renders the sale deed as without consideration and thirdly, that the land of the property in dispute was held on lease from the Lahore Improvement Trust under a covenant that it could not be transferred without the Trust's permission and as the permission has been refused, the sale deed has become void. I will deal with these contentions separately.
8. The first question for consideration in this appeal is whether the non-production of the No- Objection Certificate under section 3 of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947), from the Income-tax Department vitiate the registration. The answer of this question depends on the interpretation of section 3 of the said Ordinance. If it is found that this provision of law is mandatory then the registration of the sale deed is illegal but if it is found that this provision of law is directory then the registration will be quite valid. It, therefore, becomes necessary to examine the provision of section 3 of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947).
9. It reads as under :- "3. No Registering Officer, Revenue Officer, Custodian or other officer appointed to deal with property shall register any document, relating to property other than agricultural land, which is required to be registered under the provisions of clause (a), (b), (c) or (e) of subsection (1) of section 17 of the Registration Act, 1908 unless it is certified by any Income-tax Officer in respect of every person whose right, title or interest in the property is or will be transferred, assigned, limited or extinguished under the terms of the document, either that such person is not liable to taxation under the Income-tax Act, 1922, the Excess Profits Tax Act, 1940 or the Business Profits Tax Act, 1947 or that he has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the said Acts : Provided that no such certification shall be necessary in respect of sale by a bank as a mortgagee empowered to sell."
10. A perusal of this provision of law will show that it directs the Registering Officer not to register any document relating to property other than agricultural land which is required to be registered under the provision of clause (a), (b), (c) or (e) of subsection (1) of section 17 of the Registration Act, 1908, unless it is accompanied by a certificate that such person is not liable to taxation or has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under the Excess Profits Tax Act, 1940 or under the Income-tax Act, 1922 or the Business Profits Tax Act, 1947. Mr. Ihsanul Haq, learned counsel for the appellant contended that as the prohibition is in negative form the doing of the prohibited thing is ultra vires and illegal and without jurisdiction. In support of his contention, the learned counsel has relied on a decision of a Full Bench of the Allahabad High Court in the case of Remesure Singh and another v. Sheodin Singh and another . The following principles were enunciated in this case "As a principle of the interpretation of statutes, a distinction must be drawn between cases in which a Court or an official omits to do something which a statute enacts shall be done, and cases in which a Court or an official does something which a statute enacts shall not be done. In the former case, the omission may not amount to more than an irregularity in procedure. In the latter, the doing of the prohibited thing is ultra vires and illegal, and therefore without jurisdiction."
11. With due respect I am of the opinion that the principle laid down about the prohibited things in the above decision has been expressed in very general terms. This cannot be laid down as a universal rule. This question was recently considered by this Court in the case of Atta Muhammad Qureshi v.
12. The Settlement Commissioner, Lahore and others (C. A. No, 29 of 1968), decided on the 28th October 1970 and it was held that the words negative or affirmative of statute mean nothing. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. In this connection it was observed as under :-- "It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R.
13. (1848) 13 Q B 30 it was stated the words negative and affirmative of a statute mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same.
14. In Liverpool Borrough Bank v. Turner (1861) 30 L J C H 379 Lord-Campbell observed as follows :- 'No universal rule can be laid down as to whether a mandatory enactment shall be construed1 directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.'
15. In Howard v. Ballingdon (1877) 2 P D 203, Lord Penzance after citing this ductum of Lord Campbell added as follows:-- 'I believe as far as any rule is concerned, you cannot safely go further than that. In each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object to be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory'." similar view was also expressed by Craies on Statute Law (5th Edition), at p. 243 :-- "Inferences to be drawn from negative language.--If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding. By the Quarter Sessions Act, 1814, it is enacted that the Michaelmas quarter sessions shall be held in the week next after Otober 11 (See now Criminal Justice Act, 1925, S. 22). In R. v. Leicester JJ. (1827) 7 B & C 6, 12, this enactment was held to be merely directory as to the time for holding the sessions. 'It has been asked', said Lord Tenterden, 'what language will make a statute imperative if 54 Geo. 3, c. 84, be not so. Negative words would have given it that effect, but those used are in the affirmative only'. But it does not appear that this can be laid down as a universal rule (In Mayor of Landon v. R. (1848) 13 Q B 30). At all events, it has been held on several occasion that enactments prescribing the formalities which are to be observed in solemnising a marriage are not absolute, although expressed in negative and prohibitory language, and that neglect of these formalities does not invalidate the marriage. Thus, in Catteral v. Sweetman (1845) 9 Jur. 951, 954 it appeared that it was enacted by a colonial Act, that no marriage between Presbyterians and Catholics should be had and solemnised 'until one or both of such persons, as the case may be, shall have signed a declaration in writing', and the question was whether a marriage solemnised without the declaration in writing being signed was valid or not.
16. 'The words in this section' said Dr. Lushington, 'are negative words, and are clearly prohibitory of the marriage being had without the prescribed requisites, but whether the marriage itself is void is a question of very great difficulty. It is to be recollected that there are no words in the Act rendering the marriage void, and I have sought in vain for any case in which a marriage has been declared null and void unless there were' words in the statute expressly so declaring it'. After discussing the various English Acts on the subject of marriage, he continued as follows : 'From this examination of these Acts I draw two conclusions. First, that there' never appears to' have been a decision where words in a statute relating to marriage, though prohibitory and negative, have been held to infer a nullity, unless such nullity was declared in the Act. 'Secondly, that, viewing the successive marriage Acts, it appears that prohibitory words, without a declaration of nullity, were not considered by the Legislature to create a nullity'. On these grounds, therefore, he held the marriage to be valid. A similar R. v. Birmingham (1828) 8 B & C 29 decision to this had been previously given by Sir John Nicholl, M. R , in Samallwood v. Tradger (1815) 1 App. Cas. 611, 629 a case turning upon Lord Hardwicke's Act (26 Geo. 2, C. 33), section 1, which enacted that `in all cases where banns have been published, the marriage shall be solemnised in one of the parish churches where such banns have been published, and in no other place whatever'. Sir John Nicholl there decided in favour of the validity of a marriage which had been solemnised at a church different from that at which the banns were published, but, as he said, he took the question on narrow grounds and on its own particular circumstances, without coming himself to the general proposition that in no case would a marriage be void which had been solemnised elsewhere than in the church where the banns were published. His decision was confirmed by the Court of Delegates but without reasons being stated."
17. In Halsbury's Laws of England (Third Edition), at p. 435, the learned Author has expressed as follows :- "No universal rule can be laid down for determining whether provisions are mandatory or directory ; in each case the intention of the Legislature must be ascertained by looking at the whole scope of the statute and, in particular, at the import. acne of the provision in question in relation to the general object to be secured (Liverpool Borough Bank v. Turner (1860) 2 De. G. F. & J. 502). thus it is not possible to generalise by reference to the nature of what is prescribed. No great reliance can be placed, either, on the suggestion (R. v. Sneyed (1841) 5 J P 579) that provisions framed purely in affirmative language are normally construed as directory (R. v. Leicester Justices (1827) 7 B & C at p. 12), though the converse proposition, that negative provisions are prima facie mandatory, would seem on principle to be less open to criticism."
18. It will thus be seen that the whole Act is to be examined`r before coming to the conclusion whether a negative directionl given in a statute is absolute or mandatory.
19. Mr. Ilyas Khan, learned counsel for the respondent, has contended that the Transfer of Property (Pakistan) Ordinance (No, IV of 1947), does not expressly invalidate a registration made in contravention of section 3 of Transfer of Property (Pakistan) Ordinance (No, IV of 1947). According to him, section 4 of the Ordinance which is complimentary to section 3 provides that if any right, title or interest of any property whether movable or immovable, has been transferred, assigned, limited or extinguished, the Income-tax Officer may at any time ask the parties to the transaction to produce within one month the certificate prescribed by section 3, and if such certificate is not produced he may for ward a statement to the Collector showing the existing certificate of each or any of the parties and the Collector shall then proceed to recover the total amount shown in the statement as an arrear of land revenue. In order to appreciate this point it will be convenient to produce section 4 of Ordinance No, IV of 1947. It reads as under :-- "4. If any right, title or interest in any property whether movable or immovable, other than agricultural land, is Wahiduddin, or has been transferred, assigned, limited or extinguished after the 14th day of August 1947, an Income-tax Officer may at any time issue a notice to all or any of the parties to the transaction requiring them to produce within one month the certificate prescribed by section 3 : and if such certificate is not produced he may forward a statement to the Collector showing the existing and anticipated tax liabilities of each or any or of the said parties. The Collector shall then proceed to recover the total amount shown in the statement as if it were an arrear of land revenue, and for the purpose of the recovery proceedings he may treat the said property as if it belonged to all or any of the persons named in the statement."
20. The learned counsel further contended that the prescription under consideration relates to the performance of the public duty and where its neglect will result in serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescriptions are directory only. In this connection he referred to the following passage of Maxwell on the Interpretation of Statutes (11th Edition), at p. 369 :- "On the other hand, where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time."
21. This view was expressed by the Privy Council in the case of Montreal Street Railway Co. v.
22. Normandin . It was also expressed in the case of Biswanath Khemka v. Emperor . The passage reproduced above from Maxwell on the Interpretation of Statutes, was also approved by this Court in Zain Noorani v. Secretary of the National Assembly of Pakistan .
23. Thus it is quite apparent that the reading of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947), as a whole shows that the Ordinance does not invalidate the registration of a document if it is in contravention of section 3. On the other hand, it prescribes that if transfer has been effected in contravention of this provision, the Income-tax authorities will demand certificate under section 3 and on failure of its production have been directed to recover the tax due from any party to the transaction through the Collector. The prohibition laid down in section 3 of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947) further shows that it is in the nature of a direction given to the Registering and other authorities that a transaction will not be registered unless it is accompanied by a certificate of Income-tax authorities. This direction is in the nature of a public duty and its non-compliance over which the public or the parties have no command or control will result in general inconvenience and therefore, it is a directory provision and cannot nullify the registration effected by the Registering authorities.
24. In this view of the matter I am of the opinion that the non-compliance of section 3 of the Transfer of Property (Pakistan) Ordinance (No, IV of 1947) will not render the registration of the sale deed in question, as invalid.
25. It was next contended by the learned counsel for the appellant that non-payment of the balance of the purchase price renders the sale deed as without consideration and, therefore, it is void. In this connection it will be noticed that under the agreement between the parties the respondent agreed to purchase the property in dispute for a sum of Rs, 22,250. According to the finding of the trial Judge, the appellant had received Rs, 2,130 from the respondent in advance leaving a balance of Rs, 20,120. The respondent is ready and willing to discharge income-tax liabilities of the appellant and to pay the balance of the amount to her. It is the respondent who has stopped the appellant to discharge her income-tax liabilities to the extent of Rs, 18,000. She is also not prepared to take balance of the amount. In these circumstances, it is not possible to hold that the sale deed dated the 17th September 1958, is without consideration. Mr. Ilyas Khan, learned counsel for the respondent has referred to a decision of the Madras High Court in the case of Abdul Hashim Sahib and others v. Kadir Batcha and another . In that case a mortgage deed has been executed and registered. The mortgagor brought a suit for the cancellation of the deed on the ground that the consideration for the mortgage has not been paid. It was held that such a suit is not maintainable.
26. It was further observed as under :- "When the matter has passed from the stage of contract to that of an executed conveyance, mere non-payment of consideration will not render the transaction void or voidable within the terms of section 39 of the Specific Relief Act."
27. Reliance was placed by the Madras High Court on the decisions in the cases of Rashik Lal v. Ram Narain and Basalingappa v. Virupanappa . Thus on this principle also the sale deed cannot be declared as void. It may be mentioned that the balance of the sale price is a charge on the property in dispute and the appellant can recover this amount after Wahiduddin, discharging her income-tax liabilities. I would, therefore, repel this contention.
28. It was lastly urged on behalf of the appellant that the land of the property in dispute was held on lease from the Lahore Improvement Trust on condition that it could not be transferred without the Trust's permission and as the permission has been refused the sale deed has become void. In this2 3 4 5 6 7 connection, the learned counsel has referred to Annex 'K' the lease agreement at p. 99 of the paper-book. Sub-clause (vii) of clause 1 of this agreement provides as under :- "That the lessee shall not during the period of the lease, without first obtaining the consent of the lessor in writing, subdivide the said land or part with the possession or transfer or sub-lease the land or any part thereof."
29. In sub-clause (x) of clause 1 of the agreement it is provided that "if the lessee shall not observe and perform the covenants, the lessor may, notwithstanding the waiver of any previous breach of right of re-entry, cancel this lease and take possession of the land and any building". It is also not disputed that on the 28th January 1959, the Lahore Improvement Trust has intimated the rejection of the transfer application. The law applicable on this point is contained in section 108, sub-clause ( j ) of the Transfer of Property Act. Under it, the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. This right of the lessee is subject to any contract or local usage to the contrary. In the present case, there is contract to the contrary and under it the lessee is not entitled to transfer the property in dispute without the consent of the lessor, namely, Lahore Improvement Trust.
30. Mr. Ilyas Khan, learned counsel for the respondent has contended that the Trust has given no reason for rejecting the application of the transfer of the lease. He contended that the lessor is not entitled to withhold consent arbitrarily, unreasonably or vexatiously. The case-law on the subject shows that this view is taken in those cases where there is a term to that effect in the lease deed.
31. No case has been cited in which there was no term to this effect. I am, however, of the view that even if there is no such term in the lease deed the lessor cannot withhold consent unreasonably.
32. Mr. Ilyas Khan has further referred to a letter of the Secretary, Lahore Improvement Trust, dated the 22nd August 1970, at p. 15 of the paper-book, Part II, in which it is stated that according to the present policy of the Trust, the plots held on long lease in the Trust Scheme can be transferred on the following condition:-- "Residential plots can be transferred on payment of Rs, 250 as transfer fee and Rs, 500 as transfer surcharge on production of a copy of the transfer deed duly attested by the Sub-Registrar."
33. Thus according to the learned counsel there is no difficulty in getting the consent of the Lahore Improvement Trust for the transfer of the property in dispute.
34. It further appears to me that even if the Lahore Improvement Trust has not given consent to the transfer of the property in dispute, the sale deed for that reason will not become void. So far as the transfer between the appellant and the respondent is concerned, it is valid. In law even if there is a proviso for reentry, the lease does not ipso facto cease to be operative unless the lessor exercises his option to forfeit it. This view was taken by the Madras High Court in the case of Udipi Seshagiri v.
35. Seshama Shetatti and others . It was held in that case that an assignment by a lessee in breach of his covenant not to assign is perfectly valid to pass the term. In that case in 1876 P, by a mulgeni chit, granted to a lease in perpetuity of agricultural land which contained a clause to the following effect :-- "When you and also your representatives do not require this property it should be delivered back to us and to our representative and you shall have no right to alienate the same to any body in any way."
36. In 1907, D, by a deed of sale assigned his interest to E. In 1916, P obtained a decree for rent for 1913 to 1915 and sought to execute the decree against the lease-hold property, but E obtained an order in those proceedings recognising his interest in that property whereupon P brought a suit to establish his right to proceed against it as the property of D. On these facts it was held as under:-- "That the suit must fail as under the above clause in the lease, P had a right of re-entry upon a breach by D, and that as he had done nothing in exercise of that right but had sued for rent after8 the date of the assignment he had treated the lease as still subsisting."
37. It was further held that the assignment by D in favour of E was operative. In the present case also the lessor has not exercised his right of re-entry and, therefore, so far as the transfer between the appellant and the respondent is concerned it cannot be held to be void. This aspect of the question was also considered in the case of John Nadjarian v. E. F. Trist . In that case also there was a covenant not to transfer the lease without the consent of the lessor. In breach of this covenant the lessee assigned the tenancy to another person. On these facts it was held as under:- " It is clear on the evidence that Mrs. Bolton never took the consent of Gupta either orally or in writing to transfer the tenancy to the plaintiff. But the transfer or assignment of the tenancy by Mrs. Bolton in breach of the condition did not render the transfer or assignment void. Whatever rights Gupta might have had against Mrs. Bolton for breach of the condition as between Mrs. Bolton and the plaintiff, the transfer or assignment was perfectly valid. As pointed out in Halsbury's Laws of England, Vol. 20, Edn. 2, p. 344, para. 415 an assignment, even in breach of a condition, is effectual to vest the term in the assignee."
38. This view is also supported by the decision of the English Court in the case of Williams v. Earle . In that case Blackburn, J., at p. 750, observed as under:-- "...............though there is a covenant binding on the defendant not to assign, the assignment is nevertheless operative, and the estate passed from the defendant to Banks, and the breaches of covenant which have occurred since are not breaches for which the defendant can be liable in the present form of action; anything done by the defendant on the premises since then he may be liable for in an action on the case: but the remedy on the covenants must be against the new tenant Banks. But the plaintiff is entitled to recover indirectly in the present action by way of damages for the breach of the covenant not to assign."
39. This case was also followed by Jenkins, C. J., in Basarat Ali Khan v. Manirulla .
40. I am, therefore, of the view that the transfer is valid so far as the appellant and the respondent is concerned and it cannot be declared as void between them. It may be that the Lahore Improvement Trust may be entitled to enforce the conditions of the lease against the respondent and for that reason the title of respondent may be imperfect but that is no ground to set aside the sale deed.
41. After careful consideration of the points raised in this case, I am satisfied that there is no force in the appeal. The appeal is dismissed with costs.
42. HAMOODUR RAHMAN, C. J.--I agree.
43. SAJJAD AIIMAD, J.--I agree. M. R. KHAN, J.--I agree. SALAHUDDIN AHMED, J.--I agree. I L R 12 All. 510 AIR 1917 P C 142 AIR 1945 FC 67 PLD 1957 SC (Pak.) 46 I L R 42 Mad. 20 I L R 34 All. 273 (1903) 5 Bom. L R 392 AIR 1920 Mad. 1006 AIR 1945 Bora. 399 (1868) 3 Q B 739 (1909) 36 Cal. 745 9 10 11 1 2 3 4 5 6 7 8 9 10 11